Attorney General Nisbett says Bill would strengthen legal system and enhance the development of jurisprudence in the Federation

Mar 1, 2012

St. Kitts and Nevis’ Attorney General and Minister of Justice and Legal Affairs, Hon. Patrice Nisbett speaking in the National Assembly. (Right is Minister of Public Works, Housing, Energy and Utilities, the Hon. Dr. Earl Asim Martin and at the back, Minister of Health, Culture, Community and Social Development and Gender Affairs, the Hon. Marcella Liburd. (Photo by Erasmus Williams)

BASSETERRE, ST. KITTS, MARCH 1ST2012 (CUOPM) – The Government and People of the Federation would have the benefit of direct access to the Eastern Caribbean Court of Appeal on important troubling legal questions and matters of interest could be expedited under the “Attorney General’s Reference (Constitutional Questions) Bill.

The Hon. Patrice Nisbett, Attorney General and Minister of Justice and Legal Affairs, said the Government and People would be empowered to approach the Court of Appeal with questions which have given rise to difficulties and differences of legal opinion and which compelling arguments to contrary effect could be advanced.

“In that regard, this bill should strengthen our legal system and could significantly enhance the development of our jurisprudence in the federation and even in the wider region. Mr. Speaker, the Court of Appeal is an ideal institution to approach for advice on such legal questions as the said Court is one of the principal instruments by which we interpret our fundamental laws,” Mr. Nisbett, said during the debate on the legislation in the St. Kitts and Nevis National Assembly.

He pointed out that the Court of Appeal is currently responsible for some of the most authoritative constitutional judgments and judges of the Court of Appeal are, in a very real sense, interpreters of the fundamental laws.

“Mr. Speaker, by hearing and answering such theoretical questions the Court of Appeal would be afforded another avenue and opportunity to elaborate on the meaning of various aspects of our fundamental laws. In that regard, we anticipate that the court in discharging its responsibilities under this bill would be ever mindful of its duty to continue to put our constitutional jurisprudence on an increasingly sound philosophical and intellectual footing,” said the Attorney General, who pointed out further that the bill would present the Court with an opportunity in some circumstances, to partnership with the people to engineer the jurisprudence.

“In these circumstances, we anticipate that Court would be eager to grapple with some of the most sensitive and complex questions in our constitutional law with a view to interpreting our constitution’s provisions in a way that best advances its essential purpose as an instrument of justice and democratic governance. In that regard, our government and people would advance to a more comprehensive and coherent constitutional jurisprudence,” said Attorney General Nisbett.

He told lawmakers that any person with an interest in hearing on such a question could be notified of the hearing and such a person may be entitled to be heard by the Court of Appeal.

“The Court, after hearing the particular matter, would then be charged with responsibilities to hear and consider the question; answer the question and give reasons for its answer and certify its opinion on the question. The opinion of the Court of Appeal would be pronounced in the same manner as in case of judgment on appeal to the Court but, unlike a judgment that opinion shall not be binding on any party to the proceedings,” said the Attorney General, who added that the non binding nature of the advisory opinion of the Court and any other provision of this bill shall not have the effect of derogating from any of the existing powers of the Court of Appeal.

“Although the advisory opinion of the Court of Appeal is not binding on the Government of the Federation, it is anticipated that such an opinion would be treated in the same manner as a persuasive precedent or other authorities’ legal writing and it would therefore be held in very high esteem,” said Mr. Nisbett.

He said other jurisdictions with similarly styled legislation, including, Antigua and Barbuda, St. Lucia, the British Virgin Islands, the United Kingdom and Canada, just to name a few, no government has ever ignored the Court’s opinion.”

“The enactment of such a bill enables our government to secure the advice of our legal luminaries in the region and serious errors of law could be addressed before they might have a considerable impact on your constitutional law. Additionally, the people of the Federation and the wider region should have confidence in the decision of the court of Appeal since doctrine of separation of power enables the court to act independently and to justly interpret the law,” said the Attorney General.

He proffered that the Bill would also promote an even more accurate approach by Parliament, when undertaking its Constitutional responsibility of making law for the peace, order and good governance of St. Christopher and Nevis.

“In case where there is a serious constitutional question on any legislation, the Court of Appeal could be approached for its opinion and the best way forward could be more easily determined. The advantage of having the opinion of the Court, before actual cases arise, would better enable our Government to adhere to the principle of natural justice and the rule of law,’ said the Attorney General.

He also said: “Another important consideration, in relation to this Bill, is the legal question in a theoretical manner should be significantly lower than pursuing actual court proceedings.”

Mr. Nisbett noted also that it has been observed by commentators on such legislation that in some cases the opinion rendered by the courts would tend to be too general or too abstract for actual practical application or to generate a satisfactory rule or precedent.

“To a certain extent we could anticipate similar issues arising in our case. However, we would endeavor to limit the number of such abstract opinion by, ourselves limiting the number of purely hypothetical questions we refer to the Court. The question would be carefully selected by the Attorney General who, being the practical legal adviser to the Government, would be qualified to undertake that responsibility. Notwithstanding, the additional requirement for Cabinet approval further ensures that only very important questions would be put before the Court,” said Mr. Nisbett, who has been Attorney General since February2010.

He said a good example of serious constitutional questions that could be reviewed by Court of Appeal surrounds one particular clause in Article 5 of the OECS Economics Union Treaty.

“The question is whether the OECS Assembly could be empowered to make laws with direct effect in the federation, such laws not being subsidiary to an Act of Parliament directly delegating the responsibility to make subsidiary legislation. Mr. Speaker, the question does not go the validity of the Revised OECS Treaty itself. The question, simply put, is does our Constitution contemplate of facilitate the making of laws by an OECS Parliament. Mr. Speaker, this is a question, the answer to which is of significant constitutional, legal, political and economic import in the OECS region. The question is a difficult one on which experts in the legal, political and economic fields have convincingly argued opposing positions. It is critical that this question be resolved as it may affect the progress of OECS integration. Mr. Speaker, the court of appeal is one of the principal agencies of regional integration, through the harmonization of the meanings of various provisions articulated in our various OECS constitution”said the Attorney General, who recalled:

“We enacted the legislation to give effect to the OECS economic union late last year. In that legislation we, out of an abundance of caution, suspended the application of the questionable clause. However, we must still make a final determination on the best way forward with regards to that clause. Mr. Speaker, we in the Federation clearly have the political will and the desire to move forward with the process of OECS integration and we would like to take all the necessary steps to facilitate that process. However, Mr. Speaker, we are duty bound to proceed in a manner that is legally, politically and economically responsible. At this time we believe that the most prudent action we can take, with regards to OECS proposed legislation, would be for our parliament to continue to enact these law in a manner that not only promotes our regional obligations but also enables us to remain faithful to our constitutional imperatives,” said Attorney General Nisbett.